Friday, 20 October 2017

The Irony of Brexit for Immigration Control

Daniel Thym, Professor
of Public, European and International Law at the University of Konstanz

Immigration was a hot topic throughout the Brexit debate.
‘To take back control’ was a prominent slogan. In her Lancaster
speech of January this year, Theresa May was adamant that control of
immigration is a central objective of the ongoing Brexit negotiations: ‘The
message from the public before and during the referendum campaign was clear:
Brexit must mean control of the number of people who come to Britain from
Europe. And that is what we will deliver.’

Many readers of this post will remember the ‘breaking
point’ poster used by UKIP before the referendum with a picture of migrants
and asylum seekers trotting across the Western Balkans. That poster was a
tipping point in the debate. The EU was associated with chaos and open borders
– both for EU citizens and third country nationals.

From a legal perspective, there is a certain irony in the
‘breaking point’ poster. My argument will be that while Brexit can facilitate
legal control over the entry and stay of EU citizens, it need not necessarily
make it easier for the UK to control the immigration of third-country
nationals, including asylum seekers. It might even, paradoxically, render
control of immigration by non-Europeans more difficult to some extent.

Status Quo: Extended
Opt-out

The legal background of the irony is easy to explain: from a
legal perspective, the UK has always retained widespread control of its external
borders insofar as the entry and stay of third-country nationals is concerned,
since the UK rejected to participate in the border-free Schengen area. It did
not sign up to the Schengen Implementing Convention of 1990 and it secured
an opt out when the letter was integrated into the framework of the European
Union on the occasion of the Treaty of Amsterdam.

Moreover, successive British governments decided not
to participate in most legislative initiatives on immigration, visas and border
controls in the so-called area of freedom, security and justice, which have
been adopted during the past 15 years and which have substantially reshaped the
immigration law systems of countries in continental Europe. The UK does not
participate, for instance, in the Family Reunion Directive, the Long-Term
Residents Directive, the Blue Card scheme for highly qualified migrants or any
other instrument facilitating the entry or stay of third-country nationals. The
UK can decide autonomously the nationals of which country are subject to visa
requirements, are allowed to take up employment or have to leave the UK. There
is little primary or secondary law limiting UK sovereignty in this respect.

The situation is different for the ECHR and corresponding
limits to state discretion, on the basis of Articles 3 and 8 ECHR, on the
expulsion of those staying illegally, including suspects of terrorism. That is
why Theresa May was promoting a departure
from the ECHR (or at least a repeal of the Human Rights Act) when she was
Home Secretary. Leaving the ECHR (or repealing the Human Rights Act) might have
extended UK sovereignty over third-country national somewhat (albeit with a
considerable constitutional price-tag attached). By contrast, leaving the EU
won’t change much regarding immigration control.

Brexit: Loss of the
Opt-in Option

What is more, the UK might even lose regulatory leverage
post-Brexit insofar as immigration controls vis-à-vis third-country nationals
are concerned. The underlying reason is simple: at the time of the Treaty of
Amsterdam, the British government of Tony Blair secured not only an opt out
from the Schengen regime. It also won an opt in option for all immigration,
visa, asylum and border control measures, which are not inseparably linked to
the abolition of border controls. This opt in option of was reinforced by the
Treaty of Lisbon which established an hitherto unprecedented
option of ‘cherry picking’ in the field of justice and home affairs
legislation. The UK has used this opt in option quite
extensively – and selectively – over the years, including during the time
when Theresa May was Home Secretary.

This selective opt in practice focused on those measures
enhancing the control powers of states, such as the Schengen Information System
(SIS), in which the UK participates although it never signed up to order-free
travel. The UK also subscribed to many EU measures
against illegal immigration, while not being bound by the rules on legal
migration. Most importantly, the UK participates in the Dublin regulation
without, however, contributing to the solidarity measures, such as the relocation
decisions on resettling 160,000 asylum seekers from Greece and Italy to
other Member States. To be sure, the Dublin system was originally based upon a
convention outside the EU framework, but it ceased to exist as an instrument of
public international law when it was supplanted by EU
legislation in which the UK participated.

In short, British participation in justice and home affairs was
highly selective and lopsided: it enhanced state control without promoting the
rights of migrants and refugees. As a member of the EU, the UK could use the
justice and home affairs Protocols to enhance control of its external borders towards
other Member States through à la carte participation. The irony is that Brexit
will reverse these dynamics.

The Future: Reversed
Dynamics

In the post-Brexit legal environment, the UK will not be
able to decide any longer to participate in Dublin and the SIS by means of a
simple declaration notifying the Council that it wants to exercise the opt-in
option. Instead, the UK will have to negotiate with the EU post-Brexit whether
it will be allowed to participate – and these negotiation will be defined, like
any negotiation, by a quid pro quo, by reciprocal give-and-take.

Thus, the UK might have to pay a price for being allowed to
participate in the Dublin IV Regulation or the Schengen Information System in
the future – something it got for free in the past. The EU could demand, for
instance, that the UK contributes to the relocation of asylum seekers from
Greece or Italy. If that happened, Brexit would entail into the opposite of
what UKIP had hoped for when it put up the ‘breaking point’ poster.

That need not happen, of course. The UK could decide,
alternatively, to stay out of Dublin or it could negotiate a cross-sectoral
package deal. The price the EU may wish to extract from the UK for continued
Dublin participation may relate to any other policy field.

One thing, however, seems certain: the UK will not get
Dublin for free any longer – like
Switzerland, which was allowed to join Dublin under the condition that it
subscribed to border free travel within the Schengen area at the same time.
Ever since, border controls have been abolished between Germany and
Switzerland. That, to me, is the irony of Brexit for immigration law sensu
stricto: it might become more difficult for the UK to control the entry and
stay of third-country nationals.

1 comment:

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